FEDERAL AND STATE CRIMINAL DEFENSE ATTORNEYS
O'Brien Hatfield, PA GET YOUR FREE CASE REVIEW GET YOUR FREE CASE REVIEW Click To Text
TAMPA (813) 228-6989 • ORLANDO (407) 808-6750 • en Español (813) 390-2494

Holder Memorandum: Criminal Defense Attorneys Have a New Tool

By far, the most concrete and useful of the three pronouncements for criminal defense attorneys made last week was United States Attorney General Eric Holder's Memorandum to all Assistant United States Attorneys regarding the "Department Policy on Charging Mandatory Minimum Sentences and Recidivist Enhancements in Certain Drug Cases." That Memorandum calls for a "fundamental rethinking of the notion of mandatory minimum sentences for drug-related crimes"; and it contains some very specific directions regarding the DOJ's charging policies regarding mandatory minimum sentences for certain nonviolent, low-level drug offenders. Specifically, the Holder Memorandum states: "In cases involving the applicability of Title 21 mandatory minimum sentences based on drug type and quantity, prosecutors should decline to charge the quantity necessary to trigger a mandatory minimum sentence if the defendant meets each of the following criteria: The defendant's relevant conduct does not involve the use of violence, the credible threat of violence, the possession of a weapon, the trafficking of drugs to or with minors, or the death or serious bodily injury of any person. The defendant is not an organizer, leader, manager or supervisor of others within a criminal organization; The defendant does not have significant ties to large-scale drug trafficking organizations, gangs, or cartels; and 
The defendant does not have a significant criminal history. A significant criminal history will normally be evidenced by three or more criminal history points but may involve fewer or greater depending on the nature of any prior convictions . . . ".

Criminal defense attorneys now benefit in additional ways under the Holder Memorandum. Recidivist Enhancements: Prosecutors should decline to file an information pursuant to 21 U.S.C. § 851 unless the defendant is involved in conduct that makes the case appropriate for severe sanctions." (Emphasis added). In general, each of these pronouncements was greeted with a cautious, wait-and-see attitude. But District Judge Richard G. Kopf said it best. In a posting on his blog at Hercules and the Umpire, he wrote: "If the Holder Memo is interpreted strictly by line prosecutors, it is a very good thing. If, however, the Holder Memo is interpreted loosely by prosecutors and they stretch the boundaries of the government's new-found leniency policy to do deals that do not conform to the spirit of the policy, then the Holder Memo will be a very bad thing. It will result in even greater sentencing disparity in drug cases."

No Comments

Leave a comment
Comment Information
Mark J. O'Brien's cases have been featured in:
The New York Times | The Miami Herald | Bay News 9 | abc 7 | The Boston Globe | USA Today | Tampa Bay Times | FOX News Channel | The Washington Post | abc Good Morning America | Chicago Tribune | NT News Talk Florida | St. Petersburg Times | Deadspin
“Mark, thank you for everything. I will forever be indebted to you. You have stood by me and believed in me when it was not the popular thing to do. You are an amazing advocate.” Adam Filthaut
  • Former Partner at the Law Firm of Adams and Diaco (Robert Adams and Stephen Diaco)
  • MJ (Todd Schnitt) Morning Show/Bubba the Love Sponge Clem Trial
  • Attorney Phil Campbell DUI Setup/Florida Bar Trial
More Testimonials
American Association for Justice National Association of Criminal Defense Lawyers | NACDL 1958 Florida Association of Criminal Defense Lawyers | FACDL Super Lawyers AVVO | See Reviews LC | Lead Counsel Rated g+ | See Reviews